Fives Take Side on Circuit Split, Hold That SORNA's Registration Requirement Did Not Become Applicable to Those with Pre-SORNA Convictions Until AG Issed Interim Rule Making SORNA Retroactive

Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”). Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which requires a sex offender to register in each jurisdiction where he resides and to keep his registration current. Section 2250 of Title 18 prohibits sex offenders who are required to register under SORNA from traveling in interstate commerce and knowingly failing to register. Hoang’s interstate travel took place after SORNA’s enactment but before the Attorney General issued an Interim Rule declaring SORNA applicable to all sex offenders whose underlying sex-offense convictions predate SORNA’s enactment. There is a split of authority among the courts of appeals as to whether SORNA’s registration requirements became effective to already-registered, pre-SORNA sex offenders (1) on the date SORNA was enacted, or (2) when the Attorney General issued the Interim Rule declaring SORNA retroactive. We hold that Hoang did not become subject to SORNA’s registration requirements until the Attorney General issued the Interim Rule. We reverse the judgment of the district court and remand for entry of an order of dismissal.

This is so, the court held, because of the plain text of 42 U.S.C. § 16913(d), the provision of SORNA that gave the Attorney General the discretion to make the retroactive-application decision. The court went on to say that, to the extent that § 16913(d) is ambiguous, the rule of lenity commands the narrower interpretation.

Thursday, February 24, 2011

Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve Eligible

Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point. What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure to category I under guideline §4A1.3? Will that make you safety-valve eligible?

No. The safety valve criteria—including the no-more-than-one-point limitation—are found in both a guideline (U.S.S.G. §5C1.2(a)) and a statute (18 U.S.C. § 3553(f)). In 2003, the guideline was amended "to require . . . that the defendant not have more than one criminal history point 'as determined under the sentencing guidelines before application of subsection of 4A1.3.” And prior to that time, courts had interpreted the statute to have the same restriction.

What about Booker? Didn't it render § 3553(f) advisory? "Although this is an issue of first impression in this circuit, we note that every court of appeals that has addressed this argument has rejected it. . . . We join our sister circuits in holding that Booker did not impair or render advisory § 3553(f)(1)’s requirement that a defendant 'not have more than 1 criminal history point' as a prerequisite to safety valve relief."

One last shot:

Jasso argues alternatively that the 2003 amendment to U.S.S.G. § 5C1.2(a)(1), which added the words “before application of subsection (b) of § 4A1.3,” constituted an improper delegation by Congress of its rule-making authority to the United States Sentencing Commission. This argument is frivolous. The constitutionality of the Guidelines, and the Commission’s authority to promulgate them, is beyond cavil. See Mistretta v. United States, 488 U.S. 361 (1989); accord Booker, 543 U.S. at 242 (“Our holding today does not call into question any aspect of our decision in Mistretta.”). We do not find that the 2003 amendment to § 5C1.2(a)(1) falls outside the Commission’s authority or violates the nondelegation doctrine.

Obstructing Highway or Other Passageway in Violation of Tex. Penal Code § 42.03 Is Not Similar to "Loitering" Under Criminal History Guidelines

The Federal Sentencing Guidelines instruct a sentencing court to consider all of a defendant’s prior convictions, including misdemeanors and petty offenses, subject to two exceptions designed “to screen out past conduct which is of such minor significance that it is not relevant to the goals of sentencing.” Under the first exception, U.S.S.G. § 4A1.2(c)(1), convictions for certain minor offenses are counted only if they are similar to the instant offense or if the sentence includes a term of imprisonment of at least 30 days or a term of probation of more than one year. Under the second exception, U.S.S.G. § 4A1.2(c)(2), convictions for certain other minor offenses—including loitering—are “never counted.” Each provision applies to a list of enumerated offenses and to any “offenses similar to them, by whatever name they are known.” We hold today that the Texas state offense of “obstructing a highway or other passageway” [Tex. Penal Code § 42.03] is not similar to the listed offense of loitering.

Why? Because of the "common sense approach" (not to be confused with the other common-sense approach, from which it differs in important respects). This approach considers several factors

to determine whether the past conduct is “relevant to the goals of sentencing”—that is, whether the offense was sufficiently serious or indicative of future criminality that the defendant should be subject to heightened punishment. In listing such factors as the level of punishment actually imposed, the Guidelines direct us to consider the actual conduct underlying the conviction, not just the general nature of the crime. Because the Guidelines’ default rule for past offenses is one of inclusion, any doubts should be resolved in favor of counting the offense.

The factors cut against finding that obstructing a passageway is similar to loitering. To the contrary, it's more serious:

Loitering doesn't require a mental state, but obstruction of a passageway must be committed intentionally, knowingly, or recklessly. "A more culpable mental state frequently presents a more serious crime."

"With regard to obstructing a passageway, we think the focus on pathways used by people or vehicles and on actions that 'render passage unreasonably inconvenient or hazardous' limits the statute’s reach to conduct that poses a substantially greater risk of harm to others than does ordinary loitering."

Loitering is just a local ordinance violation, whereas obstructing a passageway is a Class B misdemanor punishable by up to 180 days in jail and a $2,000 fine.

Although he was initially sentenced to probation, Hernandez was later revoked and sentenced to 150 days in jail. "Even without knowing the precise circumstances of the past crime, it is clear from this limited record that it was a serious offense."

Interestingly, even though this common-sense approach allows consideration of the actual circumstances of the prior offense, the court refused the Government's attempt "to supplement the record with documents purporting to show that Hernandez was originally arrested for driving while intoxicated (DWI), but managed to negotiate the charge down to obstructing a passageway as part of a plea agreement." Why? "[B]ecause we have long held that '[a]rrests, standing alone, do not constitute reliable information under either the Guidelines or our precedent pre-dating the Guidelines.'"

No.

To recap, the Court seemed to be taking an interest in twopetitions presenting the question of Almendarez-Torres's continuing viability. It called for responses from the Solicitor General in both cases, and thereafter relisted both petitions three times. Some observers thought that the multiple re-lists suggested, if not a possible grant, that one or more Justices might be preparing a dissent from or an opinion respecting denial of cert.

The suspense came to end yesterday, when the Court quietly denied cert in both cases, sans rending of garments or gnashing of teeth. What to make of that? Who knows, but given the nature of the issue, it's a little odd that the Court would give the petitions such careful consideration before denying them without at least some comment, especially if the issue is frivolous.

One Sausage, Different Lengths? Panel Agrees Necessary & Proper Clause Authorizes SORNA's Failure-to-Register Offense for Those With Federal Priors, But Disagrees As to Why

(Disclosure: My office represents Mr. Kebodeaux, so I'm limiting this post to just a summary of the two opinions, without any analysis of their merits.)

As you know, the Sex Offender Registration and Notification Act—or SORNA, to its friends—contains a criminal sanction to enforce the registration requirement. The offense is found in 18 U.S.C. § 2250, and covers two classes of offenders: 1) those with state priors who travel in interstate or foreign commerce and fail to register or update their registration, and 2) those with federal priors who simply fail to register or update, even if they never leave their kitchens. The Fifth Circuit, in United States v. Whaley, rejected a commerce-clause challenge to the portion of § 2250 that covers sex offenders with state priors. But is § 2250 constitutional with regard to those with federal priors? That's the question presented in Kebodeaux.

Kebodeaux was convicted of a sex offense under the UCMJ. His sentence did not include a supervised release term. After serving his prison term, he was dishonorably discharged from the Air Force. Kebodeaux later moved to El Paso, where he complied with SORNA by registering as a sex offender. Several months later, police found Kebodeaux in San Antonio. He had not updated his registration. The Government charged him with violating § 2250 by virtue of being a sex offender with a federal prior who failed to update his registration when he moved intra-state. Kebodeaux pleaded guilty conditionally.

On appeal, Kebodeaux argued that the portion of § 2250 under which he was convicted is an invalid exercise of Congress's power to regulate interstate commerce because it reaches purely intrastate activity. The court of appeals rejected Kebodeaux's challenge, but disagreed on the reasoning. The panel majority, relying on the Supreme Court's decision in United States v. Comstock, held that the challenged portion of § 2250 is authorized by the Necessary and Proper Clause. The concurrence said, and I'm paraphrasing here: "No, it's valid under the Necessary and Proper Clause. See Comstock."

This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.

So what happened here? Raney drove on the wrong side of the street to get around a long line of cars waiting to get into a gas station. A police officer, who was standing in that lane directing traffic, motioned for Raney to pull over. Raney did so. Upon approaching, the officer could smell marijuana. He ordered Raney out of the car. A brown object resembling what the officer to believed to be a jazz cigarette fell on the ground. Handcuffs and pat-down. Gun in the waistband, ammo in the glovebox, and a felony conviction on the rap sheet = felon-in-possession charge. The district court denied Raney's motion to suppress the gun and ammo, finding that the stop was justified due to a traffic violation: driving on the wrong side of the street. A jury found him guilty of the FIP charge. Raney appealed.

To make a long story short, the panel majority held that there was not an objectively reasonable basis for believing that Raney had committed the three traffic offenses the Government claimed in the district court (driving in the wrong lane, disobeying an officer directing traffic, and reckless driving), or any of the other claimed violations the Government offered for the first time on appeal. In so holding, the court mentioned a couple of broader points that bear repeating. First, "[o]ur case law is clear that unless a defendant actually committed a traffic violation, there is no objective basis for the stop in the context of a traffic stop." Second, and relatedly, the good-faith exception is not available to salvage a stop based on an officer's subjective, but erroneous, belief that a traffic violation occurred.

As it happens, the district court did not make any findings on the Government's disobeying-an-officer and reckless-driving arguments. But interestingly, the court of appeals refused to remand for additional fact-finding on whether Raney committed those offenses: because "the record has . . . been developed as to these arguments[, w]e will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof." The court therefore vacated the order denying the motion to suppress, and rendered an acquittal.

Thursday, February 10, 2011

Larry picked up a 280-month sentence for a crack offense. In response to a Rule 35 motion from the Government, his sentence was later reduced to 154 months. A second Rule 35 motion got him down to 138 months. Then came the Sentencing Commission's decision in 2008 to make the reductions to the crack guidelines retroactive. Interestingly, the district court considered a sua sponte motion to further reduce Larry's sentence under 18 U.S.C. § 3582(c)(2). But before either the Government or Larry learned of this development—and hence without briefing or argument—the court denied the motion. Why? Because, in the court's view, "Larry 'ha[d] been given sufficient credit for cooperation' and . . . 'the previously imposed sentence is still sharply below the amended guideline range.'" Evidently unimpressed with the district court's efficiency, Larry appealed.

Reviewing for abuse of discretion, the court of appeals sided with Larry. In considering a motion for reduction of sentence under § 3582(c)(2), the court must do two things: 1) determine whether a reduction is authorized, and 2) if so, consider the § 3553(a) factors, along with any possible danger a sentence reduction would pose. The disrict court here did step one; it determined (implicitly) that Larry was eligible for a reduction. But it skipped step two:

There is no indication in the record that the district court considered the [§ 3553(a)] factors when it determined whether the modification was warranted. The district court did not state that it considered the factors or explain how the factors supported its finding that sentence modification was not warranted. Moreover, it did not consider argument concerning the factors, in part because the court did not give the parties an opportunity to make such arguments.

By failing to consider the required factors, the district court abused its discretion.

The Government nevertheless argued that the district court did not abuse its discretion because it considered the factors implicitly. While the Fifth Circuit "has found that the district court implicitly considered the factors when the parties presented argument to the district court concerning the merits of the motion for modification[,]" it refused to do so here because the district court never afforded the parties an opportunity to make their pitches in the first place. Nor was the fact that the district court had a report setting forth the reduced range, as well as Larry's disciplinary record in prison, enough to warrant an inference that the court considered the required factors. This error wasn't harmless, so the Fives sent the case back to the district court with specific instructions to allow the parties to present their arguments and to respond to any new reports not already in the record.

Judge King dissented, pointing to the district court's findings that "Larry 'has been given sufficient credit for cooperation,' and that 'the previously imposed sentence is still sharply below the amended guideline range.'" This showed, in her view, that "the district court considered the amended Guidelines range in the context of the particular circumstances of the case—considerations implicitly invoking the relevant § 3553(a) factors." Also, Judge King said, Larry hadn't offered any argument supporting a further sentence reduction in his case: "Without argument from the defendant that further reduction is even warranted, I would not reverse the district court’s order and remand for further proceedings."

Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate Ignorance

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371.0. She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed. For the reasons assigned herein, we vacate her convictions and sentences, dismiss the conspiracy charge of the indictment because the government failed to introduce sufficient evidence to convict her of conspiracy, and remand the case to the district court for further proceedings on the possession with intent to distribute charge.

The evidence presented by the prosecution was not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado was guilty of conspiracy. Delgado’s unconsummated “agreement” with a produce broker’s agent to commingle marijuana with produce in a motor freight shipment was not an actual agreement as required for the crime of conspiracy: the broker’s agent was an undercover government informer, who only pretended to agree to the scheme with Delgado pursuant to ICE officers’ plan to incriminate Delgado and seize contraband marijuana. The evidence was also not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado agreed with the unknown person who supplied the marijuana, the unknown prospective recipient, or any other person, to commit a crime that amounted to more than a buyer-seller relationship. The district court did not inform the jury that neither an agreement with a government informer who intends to frustrate the conspiracy, nor a simple buyer-seller relationship, is legally sufficient to amount to a conspiracy. Because there was no evidence that Delgado entered into an agreement with anyone other than the informer to engage in anything beyond a simple buyer-seller transaction, the conspiracy charge must be dismissed due to insufficient evidence.

In addition, Delgado’s trial was rendered fundamentally unfair by the cumulative effects of several errors. Two members of the prosecution team engaged in trial misconduct that was unfairly prejudicial to Delgado. The prosecutor, in his closing argument, told the jury that Delgado (who did not take the witness stand) had lied when she told the investigating government agents that she was unaware that marijuana had been hidden in the sleeping compartment of the truck. In addition, a law enforcement officer witness made an uncalled-for comment during his testimony to the effect that Delgado’s trucking company had been involved in a prior, uncharged, drug-related crime. Furthermore, the district court improperly instructed the jury that it could find Delgado guilty of possession if it found that she had been deliberately ignorant as to whether the marijuana was located inside a truck on her premises; that instruction was erroneous because the government failed to lay the required predicate for it by introducing evidence of circumstances indicating that Delgado was subjectively aware of a high probability that the marijuana was in the truck and consciously avoided discovering it. And the record on appeal does not contain a complete transcript of the proceedings at trial, thereby limiting the ability of Delgado’s new appellate counsel to present an effective appeal. These errors, in the context of this case, were cumulatively sufficient to render the proceedings fundamentally unfair. Delgado is therefore entitled to a new trial as to the remaining charge against her.

Judge Clement dissented:

The panel majority disregards the substantial evidence supporting Delgado’s conviction and substitutes its own judgment for that of the jury. Although Delgado never raised the buyer-seller exception or challenged the sufficiency of the evidence at trial or on appeal, the panel majority raises the issue sua sponte. In order to justify the result, the majority panel opinion significantly rewrites and expands this circuit’s buyer-seller exception.

Discussing the cumulative error doctrine in the habeas context, this court recognized that it “is an infinitely expandable concept that, allowed to run amok, could easily swallow the jurisprudence construing the specific guarantees of the Bill of Rights and determining minimum standards of procedural due process.” Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). The majority’s decision is a manifestation of precisely that danger. Its holding that prejudicial errors occurred distorts this court’s prosecutorial misconduct and conspiracy doctrines. The majority also misapplies this court’s cumulative error jurisprudence by expanding the doctrine to cover unrelated weak or non-existent errors. It is the rare trial that proceeds without a single miscue; “[a] defendant is entitled to a fair trial, not a perfect one.” United States v. Ragsdale, 438 F.2d 21, 28 (5th Cir. 1971). Delgado’s trial was far from unconstitutionally unfair. The majority’s holding to the contrary will be read to cast doubt on the outcomes of similarly routine trials. I would affirm the jury’s verdict and must respectfully dissent.

It's a long opinion (66 pages), but well worth a read, especially the majority's deliberate ignorance discussion.